Filed 5/14/20 Nyberg v. Moacanin CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

FRANK NYBERG et al.,

Plaintiffs and Respondents,

v.

PETER J. MOACANIN,

Defendant and Appellant. B293594

(Los Angeles County

Super. Ct. No. BC677547)

APPEAL from an order of the Superior Court of Los Angeles County, Dalila C. Lyons, Judge. Affirmed.

Hunter Salcido & Toms and Robert L. Toms, Jr., for Defendant and Appellant.

Elkins Kalt Weintraub Reuben Gartside and Julie Z. Kimball for Plaintiffs and Respondents.

__________________________

INTRODUCTION

Defendant Peter Moacanin appeals the trial court’s award of attorney’s fees as part of a judgment for partition. He argues that the court abused its discretion in overruling his objections to plaintiffs’ evidence and by ordering him to pay a greater share of attorney’s fees than the other parties. We conclude there was no abuse of discretion and affirm.

FACTS AND PROCEDURAL BACKGROUND

1. Lawsuit to Partition Property
2.
Four siblings inherited a parcel of real property and a commercial building but could not agree on the management of those assets. Frank Nyberg, John Nyberg (the Nybergs), Peter Moacanin (Moacanin), and Catherine Francis (Francis) each held a 25 percent tenant in common interest in the building, located in Old Town Pasadena.

On September 27, 2017, Frank Nyberg and John Nyberg filed a lawsuit for partition of the property, breach of fiduciary duty, and constructive fraud. In December 2017, Moacanin, then self-represented, filed a “response.” In January 2018, the parties engaged in an unsuccessful mediation.

Throughout the case, Moacanin hindered the partition process. Despite the court’s advice that Moacanin should obtain counsel, and despite Moacanin’s acknowledgement that he had ample funds for a lawsuit, Moacanin did not obtain an attorney for 10 months. This 10-month interval would play a role trial court’s ultimate award of attorney’s fees. He was first represented by counsel in August 2018.

3. Motion for Summary Adjudication
4.
On March 8, 2018, the Nybergs filed a motion for summary adjudication on their cause of action for partition, for appointment of a referee, and for an award of attorney’s fees and costs. Francis (represented by counsel) and Moacanin (still self-represented) filed separate notices of non-opposition to the motion for summary adjudication. The Nybergs filed a reply. In May 2018, the trial court granted summary adjudication on the partition cause of action. The court ordered the property to be sold.

The court denied the request for appointment of a referee without prejudice. The court reasoned: “once you have that order for the sale of the property, . . . the parties can come together on a – the selling agent, the listing agent for sale, and that to appoint a referee simply for that purpose would incur costs that would come from the proceeds of that sale.” The court also denied the Nybergs’ request for attorney’s fees without prejudice, stating that it was premature.

On June 14, 2018, the trial court issued an interlocutory judgment for partition.

5. Second Motion for Appointment of Receiver – Sale of the Property
6.
Following summary adjudication, the Nybergs endeavored to sell the property. Moacanin was uncooperative, demanding the property be fully leased before the sale (several units were not occupied by tenants at the time).

In July 2018, the Nybergs filed a motion for appointment of receiver. Moacanin, then represented by counsel, filed a memorandum of points and authorities in limited opposition to a receiver. The opposition included objections to the declarations of John Nyberg, Frank Nyberg and the Nybergs’ attorney, Nicole Gutierrez. Defendant Francis filed a notice of non-opposition to the motion. The Nybergs filed a reply. On August 13, 2018, the Nybergs took their motion off calendar because on August 10th the parties executed a final listing agreement for sale of the property.

7. Motion for Attorney’s Fees
8.
Later that month the Nybergs moved for attorney’s fees of $179,370 and costs of $4,490.04. The motion was supported with declarations and a request for judicial notice.

In their declarations, the Nybergs attested that since inheriting the building in August 2015, the parties have not been able to agree on the use, management, leasing, finances, expenses, income and other issues regarding the building. The Nybergs explained that during the lawsuit, Moacanin had refused to finalize leases or sell the property. It was Moacanin’s lack of cooperation that had prompted the Nybergs to file their motion for summary adjudication on its cause of action for partition. They declared that Moacanin had further delayed the sale of the building following the court’s order for partition, forcing them to file their motion for a receiver.

The Nybergs’ counsel, Nicole Gutierrez, testified in her declaration about Moacanin’s dilatory tactics throughout the litigation and the verbal abuse she took from Moacanin. She stated that, during the first 10 months of litigation while Moacanin was unrepresented, she was required to spend 26.2 hours in email correspondence and phone calls with Moacanin. She stated he was uncooperative and belligerent. Gutierrez attested that she and her firm’s partner spent 49.7 hours working on the motion for summary adjudication, which was necessary because of Moacanin’s refusal to sell, and 41 hours on the motion for a receiver, which was prompted by Moacanin’s delays after the court granted summary adjudication and ordered the property sold. The billing rate claimed by counsel was $566.69.

The Nybergs also requested judicial notice of the order granting the motion for summary adjudication, the interlocutory judgment, the withdrawal of their motion for receiver and several other documents previously filed by the parties.

Francis filed an opposition to plaintiffs’ motion for attorney’s fees and moved for attorney’s fees of her own. Moacanin filed a memorandum of points and authorities and declarations in opposition, and numerous objections to parts of the Nybergs’ and Gutierrez’s declarations.

The Nybergs filed a reply that addressed their motion for attorney’s fees, their objections to Moacanin’s evidence, and submitted an additional declaration of Gutierrez.

9. Award of Attorney’s Fees
10.
On September 25, 2018, the trial court heard the Nybergs’ motion. The court overruled all evidentiary objections and granted the Nybergs’ request for judicial notice. In a detailed tentative ruling, which the court adopted as its final ruling, the court found the evidence in support of Nybergs’ request of attorney’s fees credible. In contrast, the court found certain parts of Moacanin’s testimony not credible, and in other instances, that Moacanin provided “no reasonable explanation” for his conduct that had delayed the sale of the property.

The court identified three ways in which Moacanin’s behavior generated unnecessary fees: (1) the manner in which Moacanin’s communicated with Nybergs’ attorney Gutierrez prior to Moacanin retaining a lawyer, (2) forcing the Nybergs to file the summary adjudication motion, and (3) forcing the Nybergs to file the receiver motion. The court calculated the attorney’s fees to be $14,847.28 for communications with Moacanin, $28,164.49 for the motion for summary adjudication, and $23,234.29 for the receiver motion; all of these fees were allocated to Moacanin. The remaining fees and expenses claimed by the Nybergs and defendant Francis were split evenly four ways between the co-owners. The court provided a detailed explanation of reasons for each amount of attorney’s fees, which we discuss below.

In its September 25, 2018 ruling, the court found the total attorney’s fees and costs incurred by the parties to be $184,847.52. The court granted the Nybergs’ motion entirely and Francis’s motion in part. The court apportioned the parties share of attorney’s fees as follows: $29,650.37 each to plaintiff Frank Nyberg, plaintiff John Nyberg, and defendant Francis, and $95,896.43 to defendant Moacanin. An interlocutory judgment on the cause of action for partition and for attorney’s fees was filed September 25, 2018. The Nybergs later dismissed their causes of action for breach of fiduciary duty and constructive fraud. Moacanin timely appealed the attorney’s fees award.

11. Subsequent Proceedings
12.
On January 22, 2019, the Nybergs recorded an abstract of judgment. On February 15, 2019, Moacanin filed an application for writ of supersedeas in this Court in which he sought a stay of the judgment. We denied the application because Moacanin had not first sought relief in the trial court.

The property was sold after the attorney’s fee award.

DISCUSSION

1. The Legal Basis for an Award of Partition Attorney’s Fees and Costs; Standard of Review
2.
Pursuant to Code of Civil Procedure section 874.040, “the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.” (Code Civ. Proc., § 874.040.) “The costs of partition include: [¶] (a) Reasonable attorney’s fees incurred or paid by a party for the common benefit. [¶] (b) The fee and expenses of the referee. [¶] (c) The compensation provided by contract for services of a surveyor or other person employed by the referee in the action. [¶] (d) The reasonable costs of a title report procured pursuant to [s]ection 872.220 with interest thereon at the legal rate from the time of payment or, if paid before commencement of the action, from the time of commencement of the action. [¶] (e) Other disbursements or expenses determined by the court to have been incurred or paid for the common benefit.” (Code Civ. Proc., § 874.010.)

Code of Civil Procedure “[s]ections 874.010 and 874.040 provide numerous avenues for trial courts to adjust the allocation of costs if, for example, fees are incurred for purposes that unduly exacerbate the dispute or do not provide a common benefit to all parties. For instance, under section 874.010 a court may find that fees incurred ‘advocat[ing] a position of limited merit’ are not for the common benefit and should be borne by the party ‘pressing’ such ‘spurious matters.’ (Forrest v. [Elam (1979)] 88 Cal.App.3d [164,] 174; id. at p. 173 [proper to reduce fees to plaintiff who presented ‘a time consuming and meritless contention that he should receive some amount greater than that to which he [was] legally entitled’].) Or, a court may achieve a similar result through an exercise of its equitable discretion under section 874.040 and require a party to bear its own fees. (See Lin [v. Jeng (2012)] 203 Cal.App.4th [1008,] 1025–1026 [equitable for plaintiff in partition action to bear her own attorney fees where she sought to prevent her siblings from obtaining interests to which they were entitled, [she] claimed an interest to which she ‘was well aware that she was not entitled,’ and created unnecessary procedural hurdles].)” (Orien v. Lutz (2017) 16 Cal.App.5th 957, 968, fn. omitted.)

“When a trial court makes a ruling based upon equitable considerations, the abuse of discretion standard applies on review of that ruling. [Citation.] In other words, the ruling must stand unless plaintiffs establish that the trial court exceeded the bounds of reason, resulting in a miscarriage of justice.” (Lin v. Jeng, supra, 203 Cal.App.4th at p. 1025 [partition action].) We likewise “review a trial court’s decision to admit or exclude evidence under the abuse of discretion standard.” (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 885.)

3. The Trial Court Did Not Abuse its Discretion in Awarding Attorney’s Fees
4.
Moacanin argues that the trial court improperly overruled his evidentiary objections, and if the objections had been sustained, there was insufficient evidence to support the trial court’s decision. Moacanin objected to much of the evidence, but the trial court relied only on a part of the evidence in its ruling. Accordingly, we focus on the trial court’s stated reasons for the attorney’s fees award. We analyze defendant’s objections within that context.

Here, the trial court’s ruling identified fees associated with (a) Moacanin’s early communications directly with attorney Gutierrez, (b) the Nybergs’ motion for summary adjudication, and (c) the appointment of a receiver. We address each in turn.

a. Attorney’s Fees Related to Communications between Moacanin and Gutierrez
b.
As to fees associated with communications between Moacanin and Gutierrez, the trial court found: “Due to Mr. Moacanin’s misconduct, [p]laintiffs’ counsel attests that she was required to spend approximately 26.2 hours to deal with his lack of basic cooperation. (Gutierrez Decl., ¶ 3.) In opposition, defendant Moacanin attests that he only spent a total of 66 minutes communicating with Ms. Gutierrez regarding matters in this litigation. (Moacanin Decl., ¶ 6.) The court finds Mr. Moacanin’s statements as to the total amount of time spent communicating with [p]laintiffs’ counsel are not credible. Defendant Moacanin was not represented for the first 10 months of this litigation. (Gutierrez Decl., ¶¶ 3, 13.) The court finds that it is unlikely that Mr. Moacanin spent only a little over an hour total time communicating with [p]laintiffs’ counsel during these 10 months. The court finds that equitable considerations require that defendant Moacanin should incur the expenses of the estimated 26.2 hours that [p]laintiffs’ counsel spent communicating with him.”

In support of its finding, the court relied on Paragraphs 3 and 13 of Gutierrez’s declaration. We discuss several passages in the two paragraphs:

Gutierrez Declaration Paragraph 3, Part 1. Gutierrez stated in her declaration: “Defendant Moacanin refused to retain counsel (despite telling me that he had financial ability to do so). Since he was unrepresented for [10] months of litigation, I was required to have numerous email and phone correspondence with [d]efendant Moacanin (approximately 26.2 hours).” In a footnote attached to this sentence, Gutierrez stated that Moacanin emailed her a screenshot of his brokerage account statement with a value of $967,437.05, stating in the body of the email that these assets were “highly representative of assets Peter Moacanin can bring to bear should current lawsuit continue and settlement not be reached.”

Defendant did not object to this part of Paragraph 3 or the footnote.

Gutierrez Declaration Paragraph 3, Part 2. Gutierrez continued: “Defendant Moacanin has been unreasonable and at times belligerent and disrespectful in his communications with me. This along with his lack of basic cooperation, unreasonable demands, inaccurate assertions of law, and incoherent and conflicting positions have made it impossible to engage in meaningful discussions with him.”

Defendant objected to this portion of the paragraph, asserting that the statements violated the mediation privilege, were an improper conclusion, and were conclusory.

Gutierrez Declaration Paragraph 3, Part 3. Finally, Gutierrez added a second footnote in her declaration: “Defendant Moacanin has yelled at me, made threats about how I should conduct myself with him, and even made disparaging remarks about my supposed lack of experience and lack of education about real estate matters and referred to me and my colleagues as snakes.” Moacanin did not object to this footnote.

We conclude the first and third parts of Paragraph 3 identified above – to which Moacanin did not object – alone supported the trial court’s award of attorney’s fees for unnecessary and counterproductive communications to the Nybergs. The trial court expressly found Gutierrez’s 26.2 hours estimate credible and defendant not credible when he countered that he only had 66 minutes of communications with Gutierrez over the 10 months he was without counsel. Gutierrez’s testimony in the second footnote about the nature of Moacanin’s comments went unchallenged. From this, ample evidence supports the implied finding that it was Moacanin’s conduct that caused this unnecessary expenditure of time.

The second part of Paragraph 13 gave further context to Gutierrez’s claim that Moacanin’s behavior in dealing with Gutierrez generated unnecessary fees. The trial court did not abuse its discretion in overruling Moacanin’s objections. Moacanin first asserted the mediation privilege. (Evid. Code, § 1115 et seq.). Yet, he fails to develop an argument on appeal that the particular statements Gutierrez described in her declaration were connected to the parties’ mediation such that they were privileged. The failure to develop his argument by citations to the record or pertinent legal authority forfeits the issue on appeal. (See People v. Aguayo (2019) 31 Cal.App.5th 758, 768.)

We find Moacanin’s “improper conclusion” and “conclusory” objections equally baseless. Much of the challenged evidence was factual, not conclusions or conclusory. Moacanin appears to argue that the evidence was inadmissible because it did not track word for word his statements. He proffers no authority for that proposition. That witnesses “could not recite its contents word for word did not render their testimony inadmissible or ineffectual.” (In re Estate of Sharon (1918) 179 Cal. 447, 456.)

Even if we give credence to Moacanin’s claim that much of this evidence was based on opinion, the opinions he cites are the type permitted of a lay witness under Evidence Code section 800.

As Witkin observes, the modern rule of non-expert opinion favors admissibility. (1 Witkin, Cal. Evidence (5th ed. 2019) ch. V, Opinion Evidence, §§ 3, 4.) The treatise has catalogued the wide variety of lay opinions that have been found admissible, such as identity, measure of speed, rational or irrational appearance, demeanor, age, health, and intoxication. (Id. at §§ 5–19.)

Moacanin objected to those parts of Gutierrez’s declaration that described her conversations with Moacanin as unreasonable, belligerent, lacking in basic cooperation, and incoherent. We see little to differentiate among the opinions approved in the cases cited in Witkin and those to which Gutierrez testified – certainly not enough to conclude that the trial court abused its discretion in overruling the objections.

We conclude the trial court’s award of 26.2 hours of attorney’s fees based on nature of the communications Moacanin had with Gutierrez and Moacanin was well supported by evidence, and the trial court did not abuse its discretion.

c. Attorney’s Fees Related to Motion for Summary Adjudication
d.
The second category of fees awarded was related to the Nybergs’ partition summary adjudication motion. The court stated: “As to the attorney’s fees for [p]laintiffs’ motion for summary adjudication in this action, the court finds defendant Moacanin should also incur the expenses of this motion. Plaintiffs’ counsel attests that Mr. Moacanin adamantly opposed and denied [p]laintiffs’ right to partition the subject property but did not oppose [p]laintiffs’ summary adjudication motion. (Gutierrez Decl., ¶ 9.) Mr. Moacanin attests that he did not oppose the summary adjudication motion because he felt it was ‘satisfactory that the [subject] property is put on the open market for the highest bidder.’ (Moacanin Decl., ¶ 2.) However, this does not explain why Mr. Moacanin never stipulated to the partition when offered by [p]laintiffs’ counsel. (Gutierrez Decl., ¶ 9.) The court finds that defendant Moacanin could have avoided [p]laintiffs’ need to file the motion for summary adjudication.”

The court cited Gutierrez’s Paragraph 9 to support its finding. There, Gutierrez testified: “Shortly after filing our motion, I received a notice of non-opposition from [d]efendant Moacanin and [d]efendant Francis. I was surprised that [d]efendant Moacanin did not oppose our Motion for Summary Adjudication because he had adamantly opposed and denied [p]laintiffs’ right to partition the [p]roperty up until that point. In an attempt to reduce attorney[’]s fees, I asked [d]efendant Moacanin if he would stipulate to the partition action and entry of interlocutory judgment to avoid having to incur fees to attend the hearing. The parties didn’t agree. Attached hereto as Exhibit ‘D’ is a true and correct copy of the email I sent to [d]efendant Moacanin and counsel for [d]efendant Francis.” (Italics added.) Defendant objected to the italicized text, asserting that this was an improper conclusion. He did not object to Exhibit D.

We find no error in the court overruling this objection: this statement too was either factual or lawful lay opinion based on Gutierrez’s perception and experience. Gutierrez was stating that Moacanin had repeatedly opposed partition until she filed a motion for summary adjudication. In the language of Evidence Code section 800, the testimony was “[r]ationally based on the perception of the witness; and [¶] (b) [h]elpful to a clear understanding” of the witnesses’ testimony. As the trial court pointed out, Moacanin failed to explain why he never stipulated to partition when offered by the Nybergs but nevertheless did not oppose the summary adjudication motion. To the extent Gutierrez’s declaration suffered from some hyperbole and vagueness, we are satisfied any claimed excess was inconsequential.

The trial court did not abuse its discretion by awarding fees for the summary adjudication motion.

e. Attorney’s Fees Related to the Appointment of a Receiver
f.
Lastly, the trial court awarded attorney’s fees for the Nybergs’ motion to appoint a receiver, explaining: “As to the motion for appointment of a receiver, the court finds that defendant Moacanin should incur the expenses of this motion. On May 25, 2018, at the hearing for [p]laintiffs’ summary adjudication motion, the court stated that the subject property is to be promptly sold. (Gutierrez Decl., ¶ 10, Exh. E [Hearing Transcript, 5:6-11].) The court denied [p]laintiffs’ request for appointment of a referee to allow the parties to agree on a listing agent and avoid the costs of a referee, which would come from the proceeds of the sale of the subject property. (Req. Jud. Ntc., Exh. A; Gutierrez Decl., ¶ 10, Exh. E [Hearing Transcript, 3:25-4:3].) However, when [p]laintiffs’ counsel reached out to defendant Moacanin regarding the sale of the subject property, he responded that he wanted the subject property fully leased prior to the sale. (Gutierrez Decl., ¶ 11, Exh. G.) Defendant Moacanin’s responses regarding the sale of the subject property appear to be only aimed at hindering or delaying the process, which were contrary to the court’s order. On July 20, 2018, [p]laintiffs filed a motion for appointment of a receiver and defendant Moacanin also did not oppose this motion. (Gutierrez Decl., ¶¶ 12-13.) Defendant Moacanin has provided no reasonable explanation as to why he ultimately chose not to oppose this motion. The court finds that defendant Moacanin could have avoided [p]laintiffs’ need to file motion for appointment of a receiver.”

For this analysis, the court relied on Gutierrez’s declaration Paragraphs 10 and 11. Moacanin did not object to the former, in which Gutierrez explained that the court initially declined to appoint a receiver as it expected the parties to collaboratively move forward with the sale following the summary adjudication order.

Gutierrez’s Paragraph 11 stated: “On or about May 31, 2018, I contacted [d]efendant Moacanin and counsel for [d]efendant Francis to discuss the sale of the [p]roperty on the public market. Attached hereto as Exhibit ‘F’ is a true and correct copy of the email I sent to [d]efendant Moacanin and counsel for [d]efendant Francis. On or about June 6, 2018, [d]efendant Moacanin responded to my email stating that he wished to delay the sale of the [p]roperty until it is fully leased so that he and [d]efendant Francis could obtain bank financing. Defendant Moacanin also stated that he wished to undergo a three[-]broker appraisal process in lieu of a public sale. Attached hereto as Exhibit ‘G’ is a true and correct copy of [d]efendant Moacanin’s response to my email. On or about July 16, 2018[,] [d]efendant Moacanin further suggested that non[]defendant coconspirator Hoss MacVaugh take over leasing of the [p]roperty even though [p]laintiffs and [d]efendants had an exclusive leasing agreement with Ms. Shoemake through at least September 15, 2018.”

Moacanin solely objected to Gutierrez’s references to Exhibits “F” and “G,” and the comment that “Moacanin also stated that he wished to undergo a three[-]broker appraisal process in lieu of a public sale” on the basis that Exhibit “F” was not what Gutierrez said it was and Exhibit “G” did not support Gutierrez’s “[i]mproper conclusion.” Even without the two exhibits and that sentence fragment, Gutierrez’s declaration provides substantial evidence for the court’s conclusion that defendant tried to hinder or delay the sale that the court had already ordered. This prompted the Nybergs to seek appointment of a receiver to sell the property when Moacanin would not consent. Moacanin fails to provide any alternative explanation for his lack of cooperation and failure to comply with the trial court’s order to promptly sell the property.

Moacanin argues in his reply brief that the “purported failure of [Moacanin] to stipulate to partition and a receiver cannot be substantial evidence supporting a disproportionate award of attorney’s fees against [Moacanin] since [Francis] also failed to stipulate to partition and a receiver.” That does not appear to be the case. Gutierrez attested: “Ms. Francis was agreeable to most if not all the proposals exchanged back and forth throughout this case and was amendable to selling the [p]roperty back in October 2017.” The trial court could have reasonably found that Francis was situated differently than Moacanin.

DISPOSITION

The attorney’s fees order is affirmed. Plaintiffs and respondents Frank Nyberg and John Nyberg are awarded their costs on appeal.

RUBIN, P. J.

WE CONCUR:

BAKER, J.

KIM, J.